Baroness Chakrabarti: My Lords, we commence the vital work of this Committee with amendments that address a fundamental dispute of fact: that the Government’s attitude to checks, balances and the rule of law now threatens our unwritten constitutional settlement. Having failed to convince our highest court that the Republic of Rwanda is currently safe for asylum seekers and refugees, the Executive seek to overturn the Supreme Court’s recent factual determination, ousting the jurisdiction of domestic courts to reconsider those facts in the light of further developments, including the Rwanda treaty on which the Government rely. The Government further purport to take powers to ignore interim orders of the European Court of Human Rights. Thus, they threaten both the domestic rule of law, especially the separation of powers, and the international rules-based order.
I remind noble Lords not just of the Supreme Court’s decision of 15 November last year but of subsequent reports of your Lordships’ International Agreements Committee, endorsed by an overwhelming vote in your Lordships’ House; of the Constitution Committee, including three former Conservative Ministers and a former No. 10 chief of staff; and now the majority report of the Joint Committee on Human Rights. I will assume that some members of those committees will speak, so I will leave them fully to outline the clear results of their deliberations.
None the less, as your Lordships overwhelmingly decided to give this Bill a Second Reading, I will approach the task of amendment in the spirit of constitutional compromise, seeking to amend the Bill in line with the Government’s desired policy of offshoring asylum decisions while also seeking to comply with the Supreme Court’s decision and the unequivocal advice of your Lordships’ International Agreements Committee and Constitution Committee—this notwithstanding my personal objection to transporting human beings for processing, which will no doubt be subject to further political and legal scrutiny in the months and years ahead.
For present purposes, I take the Government at their word—even if that word has been put rather belligerently to the Supreme Court and your Lordships’ House. I will assume that the Government do not want to put the Executive of the United Kingdom on a collision  course with our Supreme Court or our international legal obligations, so amendments in this group seek to offer a way through the stalemate for people of good will from all sides of your Lordships’ House. Amendments 1, 2, 5 and 34 in my name are supported by the most reverend Primate the Archbishop of Canterbury, the noble and learned Baroness, Lady Hale of Richmond, and the noble Viscount, Lord Hailsham. I have signed Amendments 3 and 7 tabled by the noble Viscount. The noble Lord, Lord German, has Amendments 11 and 12.
Your Lordships’ Constitution Committee warned of a number of concerning trends in the present Government’s approach to our constitution and our courts, which seeks, for example, to disapply the Human Rights Act for particular unpopular groups rather than repeal it wholesale for everyone. I observe another new fashion in adding a lengthy introduction to a relatively short Bill that deems facts changed, making its purposes so clear that the courts should be wary of interpreting the legislation as they might otherwise do. However, since the arrival of this Bill in your Lordships’ House, the Prime Minister has stated—by a press conference, but stated—that his Rwanda Bill was designed to assuage the concerns of the Supreme Court.
Therefore, Amendments 1 and 2 add a secondary but essential purpose to the primary purpose of preventing and deterring what the Government see as unlawful migration. This purpose is to
“ensure compliance with the domestic and international rule of law by providing that no person will be removed to the Republic of Rwanda by or under such provision”
unless two conditions are met. The first condition is that there is advice from the UNHCR that Rwanda is now safe; for example, as a result of the successful implementation of promised reforms and safeguards to the asylum system there. The second condition is that this advice has been laid before both Houses of Parliament.
Now, some may balk at what they regard as a foreign body having any role whatever in the assessment of facts on the ground in Rwanda. However, as the Joint Committee on Human Rights noted, our Supreme Court’s concerns about the lack of safety there were in no small part in the light of unequivocal expert evidence from the UN High Commissioner for Refugees, with its special expertise and role under the refugee convention.
If the Executive is now asking Parliament to become complicit in overturning findings of fact by our Supreme Court—this is made explicit by Amendments 3 and 4 in the name of the noble Viscount, Lord Hailsham—it should at the very least allow Parliament to hear advice from the expert body that the Supreme Court found so authoritative before allowing facts to be deemed as having changed. Accordingly, Amendment 5 replaces the edict that Rwanda “is” safe with that belief that it “may become” so, because it should be our unanimous aspiration that the whole world becomes a safer place for persecuted and displaced people.
Further, as even an independent expert body should never usurp the fact-finding jurisdiction of our courts, especially in dangerous and fast-changing times, Amendment 34 makes it clear that even clear and  positive advice from the UNHCR would create only a “rebuttable presumption” that Rwanda is safe. In keeping with earlier legislation, as observed by the Constitution Committee of your Lordships’ House, it would not hobble our courts with an absolute conclusion. Yet, if the Government are really so confident that that Rwanda treaty, unlike the refugee convention so long before it, will be implemented so as convincingly to render that country safe, they have nothing to fear from either these amendments or our courts. I beg to move.

Lord Ponsonby of Shulbrede: My Lords, as the noble Lord, Lord German, said, there is a suite of amendments in this group that, in many ways, cover the same ground as the first group. It is clear from this short debate, as well as the first, that this debate—approaching the Bill by ensuring that the terms of the treaty are being properly adhered to; essentially, we are debating the mechanism for how best to do this—will dominate the whole Committee stage. I hope colleagues can work together to return the best possible solution on this issue.
In the same way that the Opposition do not wish to delay the Bill’s passage, we do not want to create barriers for the scheme to start. Our focus should be on how we monitor and judge the safety of Rwanda,  who monitors it, and what should happen if Rwanda is judged not to be a safe country for those being removed to it.
The noble Lord, Lord German, introducing Amendments 4 and 17, said there should no commencement of the Act until Rwanda is deemed a safe country. A number of noble Lords spoke at length on proposed new subsection (1A)(c) in Amendment 84, which are the 10 issues raised by the committee of this House about how that might be achieved. The noble Lord looked at how that might be done, how many of those elements are in place, which are operational and—perhaps more fundamentally—whether Rwanda has the practical ability to fulfil the undertakings in a more long-term way. That is really the point that the noble Lord, Lord Inglewood, made in his brief contribution to this group.
My noble and learned friend Lord Falconer speculated that the Secretary of State could, after making a decision, be open to judicial review. The noble Lord, Lord Howard, said that the Supreme Court did not use the principles of judicial review when it made its decision, but decided the case on first principles. Both my noble and learned friend and the noble Lord are well above my grade in legal matters, but it seems to me that this is another example of possible compromise as we move forward—as there were possible areas of compromise discussed in the debate on the first group.
The noble Lord, Lord Purvis of Tweed, gave his customarily extremely articulate speech on the various provisions in proposed new subsection (1A)(c) in Amendment 84. He spoke of making a silk purse out of a sow’s ear and went through various ways in which that might be achieved—although he made his reluctance to do so very clear. The noble Viscount, Lord Hailsham, spoke about his Amendments 81 and 82, on the rolling sunsets, as he described them, which we will get to on a subsequent group.
So, really, this whole group is trying to make sure that the Government are properly held to account. As I said in my introduction, our focus will be on how to monitor and judge the safety of Rwanda, who monitors it, and what Parliament’s role is in that, rather than putting up a barrier against the Bill itself.

Lord Sharpe of Epsom: My Lords, I thank all noble Lords for speaking in this group, and in particular the noble and learned Lord, Lord Hope, for his introduction.
The UK and Rwanda entered into the migration and economic development partnership with a commitment to develop new ways of managing flows of irregular migration by promoting durable solutions, and so breaking the existing incentives that make people embark on dangerous journeys to the UK. The UK and the Government of Rwanda have a shared vision regarding the necessity for the global community to enhance international protection for asylum seekers and refugees, underlining the importance of effective and operational systems that provide protection to those most in need.
This partnership is part of a suite of measures to tackle illegal migration and builds on wider collaboration with Rwanda on many shared issues. As I have set out previously, we have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited. The treaty itself will follow the usual process with regards to scrutiny and ratification. I say to the right reverend Prelate the Bishop of Norwich that I am afraid I cannot improve on that, and I will continue to defer to the Home Secretary.
I would like to provide reassurance to noble Lords that the treaty enhances the role of the previously established independent monitoring committee, which will ensure that obligations under the treaty are adhered to in practice and will be able to take steps to address any concerns at an early stage. Therefore, the Government argue that the amendments in the name of the noble and learned Lord, Lord Hope of Craighead, are not necessary, although I of course take his points about words. As the noble and learned Lord said, the Bill reflects the strength of the Government of Rwanda’s protections and commitments given in the treaty to people relocated to Rwanda in accordance with the treaty. It addresses the point made by the Supreme Court that Rwanda’s systems could be strengthened, on the basis of the facts before the Supreme Court at the time.
Amendment 14 in particular would impose a requirement for the joint committee for the migration and economic development partnership to provide a declaration to the Secretary of State confirming that the mechanisms specified in Article 2 of the treaty have been implemented. Without such a declaration, the effect of the amendment would be that the treaty  could not be regarded as fully implemented. This is unnecessary. We have assurances from the Government of Rwanda that the implementation of all measures within the treaty will be expedited.
I turn to Amendments 15, 16, 77, 83 and 88 in the name of the noble Lord, Lord Anderson of Ipswich, and Amendments 64 and 65 in the name of the noble Lord, Lord Coaker. The monitoring committee is independent of both the UK and Rwandan Governments. It was established under the memorandum of understanding that originally underpinned the partnership. The treaty enhances the monitoring committee’s role. Article 15 of the treaty provides that the UK and Rwanda must establish and maintain a monitoring committee for the duration of the term of the agreement. This means that both parties are obliged to ensure that the monitoring committee continues in operation for the life of the agreement, and this obligation is binding in international law.
The Government have already established robust reporting mechanisms. The monitoring committee’s terms of reference and enhanced monitoring plan are available publicly on GOV.UK. They set out that, during the period of enhanced monitoring, the monitoring committee will report to the joint committee, which is made up of both UK and Rwandan officials—as set out in Article 15(4)(b)—in accordance with an agreed action plan, which will include weekly and bi-weekly reporting as required.
It would be helpful to go into more detail on this. The treaty includes enhanced provisions to provide real-time independent scrutiny of Rwanda’s asylum procedures, aimed at preventing the risk of mistreatment contrary to Article 3 of the ECHR before it has the chance to occur. This addresses the findings in the Supreme Court proceedings that under the previous arrangements, as set out in the memorandum of understanding, the work of the monitoring committee would necessarily be retrospective.
In addition, the new provision of the monitoring committee’s own complaints system will allow relocated individuals and their legal adviser to make direct and confidential complaints regarding any alleged failure to comply with the obligations in the agreement. That enhanced phase will ensure that monitoring and reporting take place in real time, so that the monitoring committee can rapidly identify, address and respond to any shortcomings or failures to comply with the obligations in the agreement, identify areas for improvement, or urgently escalate issues prior to any shortcomings or breaches placing a relocated individual at risk of real harm. That will include reporting to the joint committee co-chairs within 24 hours in emergency or urgent situations.
As per Article 15(4)(c) of the treaty, the monitoring committee will make any recommendations to the joint committee that it sees fit. The monitoring committee will otherwise produce a formal written report for the joint committee on a quarterly basis over the first two years of the partnership, setting out its findings and making any recommendations. Following notification to the joint committee, the monitoring committee may publish reports on its findings as it sees fit. At least   once a year, it will produce a summary report for publication. We consequently consider these arrangements, which have been carefully agreed with the Government of Rwanda and will be binding in international law, to be sufficient to ensure continued compliance with all the terms of the treaty.
Finally, I am grateful to the noble Lord, Lord Blunkett, for his Amendments 8 and 72. Clause 1 sets out the obligations to which the Government of Rwanda have committed under the new treaty. The proposal in these amendments does not reflect the arrangements under the treaty. Requiring persons whose claims are successful in Rwanda to be returned to the UK would be against the spirit and intention of the treaty and the partnership. Those relocated to Rwanda are not intended to be returned to the UK, except in very limited circumstances.
It is the Government of Rwanda who will grant refugee status to those relocated to Rwanda through the treaty, which will underpin the migration and economic development partnership, not the UK Government. The grant of refugee status in Rwanda does not confer on that person any rights in the UK, as would be the case for any other person granted refugee status in Rwanda who had not been relocated from the UK. Anyone who wishes to come to the UK in future would have to apply through legal routes—through a work or family route. However, there would be no guarantee that they would be accepted.
As my noble friend Lord Murray of Blidworth noted, relocating asylum seekers to a safe third country to process their claim is compliant with the UK’s obligations under the refugee convention, as confirmed by the High Court and the Court of Appeal. The Supreme Court did not disturb that finding.

Lord Jackson of Peterborough: I hope to address the point made by the noble and learned Lord, Lord Falconer. Yesterday, I was in Huntingdon town hall watching a play recreating the trial of Charles I, which took place from 20 to 30 January 1649. Obviously, it did not end well for Charles I, who was arraigned on a charge of treason for making war against his own people. What he really did, of course, was that he usurped Parliament. He grabbed for himself the age-old privileges, that Parliament then said it bestowed upon itself, of a sovereign Parliament. It was the ultimate demonstration of the rights and privileges of that Parliament to put to death for the first time in history its own King. The point is that the sovereignty of this place is a precious thing, and I think that the amendment put forward by my noble friend Lord Hailsham unbalances the three-legged stool that the noble Earl, Lord Kinnoull, who is no longer in his place, referred to in his earlier comments.
I draw attention specifically on that issue to—noble and learned Lords will no doubt be aware of this reference—AV Dicey’s doctrine of the supremacy of Parliament. The eighth edition of the textbook, Introduction to the Study of the Law of the Constitution, was published in 1915. It outlines the concepts of parliamentary sovereignty and the supremacy of Parliament. The three key points of parliamentary supremacy were that: Parliament can make any laws, it cannot be overridden by any body and cannot bind its successors nor can it be bound by its predecessors. The wider point is that we are a dualist Parliament. We do not cut and paste international treaties into law without proper scrutiny and oversight. Obviously, that involves primary and secondary legislation going through the proper procedures in this Parliament. That has been upheld by the Appellate Committee of the House of Lords in its time and of course by the Supreme Court. Treaty obligations have effect in domestic law only so far as they are expressly incorporated into domestic law. The sovereignty of Parliament is fundamental to our rule of law and cannot be circumscribed by international law, opinions or even conventions.
In the case of R v Lyons in 2002—it is a very important point, so I hope noble Lords will forgive me if I read it in full— Lord Hoffmann, stated that
“it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them... It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. ... The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not”.
In Bradley and Ewing’s authoritative book Constitutional and Administrative Law, it is clearly stated that the legislative supremacy of Parliament is not limited by international law:
“the courts may not hold an Act void on the ground that it contravenes general principles of international law”.
Indeed—as the noble and learned Lord, Lord Falconer, will be aware—the Labour Government in 1998 specifically reaffirmed the sovereignty of Parliament in relation to the Human Rights Act.
The amendment that we put down specifically makes that point. As I draw to a finish, I want to say to noble Lords that convention and international treaty obligations can be circumscribed and undermined to an extent by government. I draw noble Lords’ attention, for instance, to the prisoner vote issue of 2005. When I served in the other place, it was very much the settled view across the parties, including the Labour Government and the leader of the Opposition, that we would not accept prisoners who had been incarcerated with custodial sentences over a certain period receiving the vote. That was anathema to David Cameron, the case being Hirst v UK (No. 2) ECHR 681 [2005]. There was no outcry or uproar then; there was a settled consensus in this sovereign Parliament that the British people were not prepared to subsume their views, attitudes and opinions on prisoners sentenced to life imprisonment having the vote, having those civil and human rights that other people did. This issue will come up again when we debate later in this Committee the issue of marriage of whole life-tariff prisoners. One other example of course is that Madam Merkel disregarded the Dublin convention in 2015, allowing over a million Syrian refugees to come to the country in breach of Germany’s obligations under various treaties.
In conclusion, this Bill is of course imperfect; it is flawed. I may not even have voted for it when I was still in the other place, but that is another issue. Some noble Lords clearly want to hobble the Bill, make it inoperable and kill it with multiple amendments. We know that; it is only honest to say so. But the amendment moved by my noble friend Lord Hailsham moves the dial far too much towards judicial activism and away from parliamentary sovereignty. For that reason, I must ask noble Lords to resist it.
Finally, to those potentially assuming a ministerial responsibility later this year on the other side of this Chamber, I say, “Be careful what you wish for”. If Labour is elected to government, it will have to put into place an election manifesto; the people will have given it the faith and trust so to do. To undermine that by subjugating parliamentary sovereignty to international treaty obligations, which may change against the interests of a Labour Government and the British people, is a hostage to fortune. Undermining parliamentary sovereignty may seem a prudent thing to do in Opposition, but the burdens of higher office mean that, one day, the boot may well be on the other foot. For those reasons, I very strongly support the amendment in the name of my noble friend Lady Lawlor and resist the amendments moved by my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti.